In its last round of Family and Medical Leave Act rule revisions, the Department of Labor recognized employers’ rights to establish notice procedures for employees who need to miss work due to intermittent and other legally protected medical conditions. This year, a number of federal appellate cases have affirmed these rights, even in situations where DOL took the position that the notice requirements exceeded those permitted under the FMLA regulations.
For example, in Acker v. General Motors, LLC, GM’s collective bargaining agreement requires employees on intermittent FMLA leave to promptly provide telephone notice of their need to be away from work. The plaintiff failed to call in on several occasions, resulting in progressive discipline under GM’s attendance policy. He sued, claiming that the requirement for notice of each need for intermittent absence interfered with his rights to FMLA leave. The Fifth Circuit Court of Appeals affirmed summary judgment for GM, upholding the policy and concluding that the plaintiff was only excused from providing individual notice if he demonstrated unusual circumstances.
In Alexander v. Kellogg USA, Inc., the employer had a dual notification requirement for absences, including a call to the operational unit at least two hours before the expected start time and a subsequent notice to a benefits hotline within 48 hours. Kellogg terminated the plaintiff after multiple instances where he notified the operational unit of his absences, but he failed to provide the subsequent benefits notice. Over DOL objections, the Sixth Circuit Court of Appeals affirmed dismissal of the claims, upholding the dual notice requirement as consistent with the FMLA rules.
Finally, in Levaine v. Tower Automotive Operations USA I, LLC, the plaintiff was terminated after yelling at and threatening a supervisor who asked him for information to confirm whether his tardiness related to his approved FMLA intermittent leave. Again, the Sixth Circuit upheld the discharge, concluding that employers have a right under the FMLA to determine whether the employee has a qualifying reason for each absence.
Employers often struggle with intermittent FMLA leaves, especially in circumstances where employees leave or fail to show up for work with little or no notice. These cases demonstrate employers’ ability to implement reasonable advance notice requirements for intermittent and other FMLA absences. While employees subject to these notice requirements may object to their perceived burdens, federal courts have shown little sympathy to those persons disciplined and terminated as a result of their failure to follow the employers’ requirements.
